Citation Nr: 0827255
Decision Date: 08/13/08 Archive Date: 08/18/08
DOCKET NO. 05-26 939 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to a rating in excess of 10 percent for
lumbosacral strain, prior to October 12, 2005.
2. Entitlement to a rating in excess of 20 percent for
lumbosacral strain, from October 12, 2005.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
A. Nigam, Associate Counsel
INTRODUCTION
The veteran served on active duty for training from January
1982 to April 1982 , and on active duty from January 1991 to
March 1991.
This appeal to the Board of Veterans' Appeals (Board) arises
from an August 2004 rating decision, in which the RO
continued a 10 percent rating for lumbosacral strain. A
notice of disagreement (NOD) was received in November 2004,
for which the RO issued a July 2005 statement of the case
(SOC). The veteran's perfected substantive appeal (in the
form of a VA Form 9, Appeal to Board of Veterans' Appeals)
was received in August 2005.
In a May 2006 rating decision, the RO assigned a 20 percent
rating for lumbosacral strain, effective October 12, 2005.
As higher ratings are available for the time periods both
before and after October 12, 2005, and the veteran is
presumed to be seeking the maximum available benefit, the
Board has recharacterized the appeal as encompassing the two
claims set forth on the title page. See A.B. v. Brown, 6
Vet. App. 35, 38 (1993).
As a final preliminary matter, in his August 2005 VA Form 9,
the veteran requested a Board videoconference hearing. The
veteran did not appear for the Board videoconference hearing
scheduled in December 2006, and the claims file reflects
nothing further from the veteran pertaining to a hearing.
Hence, the veteran's request for a hearing is deemed
withdrawn. See 38 C.F.R. § 20.704(e) (2007).
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate each of the claims on appeal has been
accomplished.
2. Prior to October 12, 2005, the veteran's lumbosacral
strain was manifested by low back pain, with forward flexion
to 80 degrees, combined range of motion to 110 degrees,
normal neurological examination, and some paraspinal spasm
and localized tenderness not resulting in abnormal gait or
abnormal spinal contour; with no evidence of increased
limitation of motion or pain on repetitive use, or
intervertebral disc syndrome.
3. Since October 12, 2005, veteran's lumbosacral strain has
been manifested by low back pain, with forward flexion to 40
degrees, and has not been manifested by ankylosis of the
spine; with no evidence of increased limitation of motion or
pain on repetitive use, or intervertebral disc syndrome.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 10 percent for
lumbosacral strain, prior to October 12, 2005, are not met.
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.
2008); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45,
4.71a, Diagnostic Code (DC) 5237 (2007).
2. The criteria for a rating in excess of 20 percent for
lumbosacral strain, since October 12, 2005, are not met.
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.
2008); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45,
4.71a, DC 5237 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
The provisions of the VCAA of 2000, codified at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the
United States Court of Appeals for Veterans Claims (Court),
have been fulfilled by information provided to the veteran in
a pre-rating letter from the RO dated in June 2004. This
letter notified the veteran of VA's responsibilities in
obtaining information to assist the veteran in completing his
claim, identified the veteran's duties in obtaining
information and evidence to substantiate his claim, and
requested that the veteran send in any evidence that would
support his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002),
Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also
Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed
on other grounds, 444 F.3d 1328 (Fed. Cir. 2006),
Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006);
Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537
(2006)).
The Board notes that, effective May 30, 2008, 38 C.F.R.
§ 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-
23,356 (April 30, 2008). Notably, the final rule removes the
third sentence of 38 C.F.R. § 3.159(b)(1), which had stated
that VA will request that a claimant provide any pertinent
evidence in the claimant's possession.
During the pendency of this appeal, the Court in
Dingess/Hartman found that the VCAA notice requirements
applied to all elements of a claim. In rating cases, a
claimant must be provided with information pertaining to
assignment of disability ratings (to include the rating
criteria for all higher ratings for a disability), as well as
information regarding the effective date that may be
assigned. Additional notice as to these matters was provided
via the August 2004 rating decision the July 2005 SOC, and a
May 2006 letter.
In the present case, the Board notes that the May 2006 letter
was provided at the time of the SSOC; however, it was
provided prior to certification of the veteran's case to the
Board and the submission of the representative's brief.
Hence, the Board finds the content of the various forms of
notice fully complied with the requirements of 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159(b), and observes that the
veteran has had time to consider the content of the notice
and respond with any additional evidence or information
relevant to the claim. Based on the above, the Board
concludes that any defect in the timing of the VCAA notice is
harmless error. See generally, Conway v. Principi, 353 F.3d
1369 (Fed. Cir. 2004); see also Sabonis v. Brown, 6 Vet. App.
426, 430 (1994) (remands which would only result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided). To decide
the appeal on these facts would not be prejudicial error to
the veteran.
The Board acknowledges a recent decision from the Court that
provided additional guidance regarding the content of the
notice that is required to be provided under 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) in claims involving
increased compensation benefits. See Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008). In that decision, the Court
stated that for an increased compensation claim, 38 U.S.C.A.
§ 5103(a) requires, at a minimum, that VA notify the
claimant that, to substantiate a claim, the claimant must
provide, or ask VA to obtain, medical or lay evidence
demonstrating a worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life. Further, if the
diagnostic code under which the claimant is rated contains
criteria necessary for entitlement to a higher disability
rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), VA must provide at least general
notice of that requirement to the claimant. Id.
While the veteran was clearly not provided this more detailed
notice, the Board finds that the veteran and his
representative, through written statements made to VA, such
as in the October 2006 VA Form 646, Statement of Accredited
Representative in Appealed Case and the July 2008 brief, as
well as statements made to VA examiners in July 2004 and
October 2005, have demonstrated actual knowledge of all
relevant VA laws and regulations. See Sanders v. Nicholson,
487 F.3d 881, 889 (Fed. Cir. 2007). As such, the Board finds
that the veteran is not prejudiced based on this demonstrated
actual knowledge.
The notice requirements pertinent to the issues on appeal
have been met and all identified and authorized records
relevant to these matters have been requested or obtained.
The Board finds that the available medical evidence is
sufficient for an adequate determination. There has been
substantial compliance with all pertinent VA laws and
regulations and to move forward with these claims would not
cause any prejudice to the veteran.
Higher Ratings
Disability evaluations are determined by application of the
criteria set forth in VA's schedule for Rating Disabilities,
which is based on average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises
as to which of two ratings applies under a particular
diagnostic code, the higher rating is assigned if the
disability more closely approximates the criteria for the
higher rating; otherwise, the lower rating applies.
38 C.F.R. § 4.7. After careful consideration of the
evidence, any reasonable doubt remaining is resolved in favor
of the veteran. 38 C.F.R. § 4.3.
The veteran's entire history is to be considered when making
disability evaluations. See generally, 38 C.F.R. § 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However,
where entitlement to compensation already has been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Nevertheless, the Board acknowledges that a claimant may
experience multiple distinct degrees of disability that might
result in different levels of compensation from the time the
increased rating claim was filed until a final decision is
made. Hart v. Mansfield, No. 05-2424 (U.S. Vet. App.
November. 19, 2007).
Historically, a in January 2003 rating decision, issued in
February 2003, the RO granted service connection and assigned
an initial 10 percent rating for lumbosacral strain,
effective July 9, 2001. This rating remained unchanged until
the May 2006 rating decision, in which the RO assigned a 20
percent rating, effective October 12, 2005.
Effective September 26, 2003, the portion of the rating
schedule for evaluating disabilities of the spine was
revised. See 68 Fed. Reg. 51,454-58 (Aug. 27, 2003)
(codified at 38 C.F.R. § 4.71a, DCs 5235 to 5243). As the
veteran's current claim for an increased rating was not filed
until May 2004, only these revised criteria are applicable in
the veteran's appeal.
Under the General Rating Formula for Diseases and Injuries of
the Spine, a 10 percent rating is assignable for forward
flexion of the thoracolumbar spine greater than 60 degrees
but not greater than 85 degrees. A rating of 20 percent is
assignable for forward flexion of the thoracolumbar spine
greater than 30 degrees but not greater than 60 degrees. A
40 percent rating is assignable where forward flexion of the
thoracolumbar spine is 30 degrees or less, or there is
favorable ankylosis of the entire thoracolumbar spine. A 50
percent rating is assignable for unfavorable ankylosis of the
entire thoracolumbar spine. A 100 percent rating is
assignable for unfavorable ankylosis of the entire spine.
These criteria are applied with and without symptoms such as
pain (whether or not it radiates), stiffness, or aching in
the area of the spine affected by residuals of injury or
disease. 38 C.F.R. § 4.71a, DCs 5235-5243 (2007).
Under the revised rating criteria, forward flexion to 90
degrees, and extension, lateral flexion, and rotation to 30
degrees, each, are considered normal range of motion of the
thoracolumbar spine. 38 C.F.R. § 4.71a, Plate V.
While, under Note (1) of the General Rating Formula, VA must
also consider whether combining ratings for orthopedic and
neurological manifestations would result in a higher rating
for the veteran's service-connected low back disability, such
would not be the case here, as all neurological findings
during the period in question have been normal. In addition,
there is no evidence of intervertebral disc syndrome (IVDS).
As such, the method under the rating schedule for evaluating
IVDS on the basis of incapacitating episodes is not
applicable. See 38 C.F.R. § 4.71a.
When evaluating musculoskeletal disabilities, VA may, in
addition to applying schedular criteria, consider granting a
higher rating in cases in which the claimant experiences
additional functional loss due to pain, weakness, excess
fatigability, or incoordination, to include with repeated use
during flare-ups, and those factors are not contemplated in
the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45;
DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The
provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered
in conjunction with the diagnostic codes predicated on
limitation of motion. See Johnson v. Brown, 9 Vet. App. 7
(1996).
Prior to October 12, 2005
During the period prior to October 12, 2005, the veteran
received VA and private treatment for his lumbosacral strain
disability, and was afforded a VA examination in July 2004.
In a May 2004 statement, a private physician indicated that
he had examined the veteran on April 19, 2004. This
physician summarized his findings to include continued,
persistent lumbosacral strain; flexion and extension at the
lumbar area limited by pain; positive sitting and straight-
leg raising on the right; difficulty with standing for
greater than 10 minutes, and exacerbation of pain with
lateral movements; and minimal evidence of paraspinal spasm,
but prominent point tenderness at L3-L5. The physician
opined that in comparing physical examination findings from
the veteran's prior military records, objective and
subjective findings in relation to his lower back pain had
worsened. The physician indicated he would treat the veteran
with anti-inflammatory medications and aggressive physical
therapy, and would refer the veteran for pain management and
imaging studies.
A copy of this evaluation was received in July 2004, and
showed treatment for low back pain, secondary to lumbosacral
strain and obesity. The veteran reported a long history of
back pain related to lumbosacral strain with decreased range
of motion. Cyclobenzopine and Protonix were prescribed.
Physical examination of the musculoskeletal area revealed
negative findings for effusion, erythema, tenderness and
atrophy, and reflected normal range of motion, digits and
nails.
During a July 2004 VA examination, the veteran reported that
he experienced constant pain, heavy in the lower back, that
radiated to the soles of his feet. He rated his pain
intensity at 9 out of a 10 on a numeric scale of 10, and
indicated it was worse after work and was aggravated by
prolonged and constant sitting. The examiner noted the
veteran had been using a cane since July 2003, took Tramadol
and Cyclobenzaprine for pain, and wore a lumbar corset, which
he obtained on his own, for the previous six months. The
veteran claimed he could not stand in any one spot for longer
than 10 to 15 minutes or he would experience pain down both
legs, and indicated extreme difficulty with traversing
stairs. The veteran stated that he could carry 5 pounds of
weight and walk for half a block, but could not sit for more
than 1 and 1/2 hours without needing to shift his weight.
The examiner noted there was no loss of bowel, bladder, or
erectile function, and perineal sensation was in tact.
Regarding his occupation, the veteran reported that he worked
as a security guard, which generally required that he sat and
monitored screens for 8 hours a day.
On examination, painless range of motion was as follows:
forward flexion was to 80 degrees, extension was to 10
degrees, and rotation and flexion, bilaterally, were to 30
degrees. Muscle strength was 5 out of 5. The examiner noted
that the veteran was obese, walked upright with a cane and
exhibited no external deformity, but had some paraspinal
spasm. The examiner indicated that sensation was intact.
There was no guarding severe enough to result in any abnormal
gait; and there was no abnormal spinal contour. However,
there was a shift of the center of gravity because of his
obesity.
Also reflected in the July 2004 report was a review of x-rays
performed in May 2004, which showed the vertebral bodies were
maintained in height, with the disk spaces grossly normal in
height. Although the examiner noted that there was mild
narrowing of the L4-L5 and L5-S1 facets, which was related to
minimal degenerative change. The examiner also commented on
the results of a November 2003 MRI, which showed mild
degenerative disk disease at all levels; although there was
slight desiccation at T11 and T12. However, there was no
evidence of disk herniation, spinal stenosis or neural
forminal compromise.
The July 2004 examiner's diagnosis was low back pain,
secondary to strain, but that his current
problems were also most likely related to his weight. The
examiner opined that the center of gravity was displaced,
secondary to his obesity, and the movement of his spine was
limited by the fat pads that were secondary to his weight
problem.
The Board recognizes that the medical evidence of record
appears to contain conflicting evidence on the question of
whether the veteran actually meets the diagnostic criteria
for a rating in excess of 10 percent for his lumbosacral
strain disability.
Here, the Board finds the medical opinion provided by the May
2004 private physician, in which the veteran's flexion and
extension at the lumbar area were found to be limited by
pain, is of limited probative value. Unlike the VA examiner,
this physician failed to provide findings related to range of
motion in terms of degrees and he did not include an
explanation of the underlying opinion. Functional loss due
to pain must be supported by adequate pathology and evidenced
by the visible behavior of a claimant. 38 C.F.R. § 4.40;
accord Johnston v. Brown, 10 Vet. App. 80, 85 (1997).
Therefore, considering the evidence in light of the
applicable criteria, the Board finds that, for the period
prior to October 12, 2005, the criteria for a rating in
excess of 10 percent for lumbosacral strain are not met.
The veteran is not entitled to a rating higher than 10
percent under DC 5237, as the medical evidence does not
reflect a basis for more than a 10 percent rating under the
General Rating Formula. In this regard, the only range of
motion testing during the period in question did not indicate
forward flexion greater than 30 degrees but not greater than
60 degrees, or combined range of motion of not greater than
120 degrees. Rather, during the July 2004 VA examination,
forward flexion was to 80 degrees and combined range of
motion was 210 degrees. In addition, the medical evidence
during the period in question does not demonstrate ankylosis
of the spine, muscle spasm or guarding severe enough to
result in an abnormal gait or abnormal spinal contour.
Instead, the July 2004 examiner specifically indicated that,
though there was some paraspinal spasm appreciated in the
lower back, there was no abnormal gait and no abnormal spinal
contour. The examiner noted the veteran was obese and had
problems related to a remote history of lumbar strain, and
attributed the veteran's current problems to, most likely,
his obesity.
The Board has considered the veteran's complaints regarding
his lumbosacral strain disability interfering with
activities; however, there was no objective medical evidence
indicating additional limitation of motion or increased pain
on repetitive motion. The Board notes the May 2004 private
physician statement reflected findings of pain on motion;
however, as stated above, the opinion did not include an
explanation of the underlying rationale, unlike the VA
examiner. Thus, consideration of 38 C.F.R. §§ 4.40, 4.45 and
DeLuca, 8 Vet. App. at 204-07, provides no basis for a higher
rating.
Accordingly, the objective medical evidence of record does
not indicate that the veteran's service-connected lumbosacral
strain warrants the assignment of a schedular rating in
excess of 10 percent for the period prior to October 12,
2005.
Since October 12, 2005
During an October 12, 2005 VA spine examination, the veteran
reported persistent pain over the lumbosacral spine with no
pain-free interval. He described his pain as occurring in
the lumbosacral spine and radiating down both legs to all
toes on both feet. The veteran indicated problems with
standing and sitting for any length of time. When walking,
he has back pain at approximately 25 feet, but is able to
walk a maximum of 2 blocks before he must stop; he uses one
foot at a time to walk up and down the stairs.
The veteran complained of 1 to 2 hours of morning stiffness,
and described episodes of muscle spasms that occur 2 to 3
times per month that last for approximately 1 1/2 hours. He
reported taking muscle relaxants and Tramadol daily for pain,
and rated his constant pain as 7 out of 10 on a numeric scale
of 10. He also described pain episodes with a rating of 10
that last approximately 2 hours, and occur 4 to 5 times a
week. These episodes are brought on when sitting at work or
in a car, and with prolonged standing or movement. He noted
he uses medication, and a hot tub when possible, to treat his
pain.
Regarding his occupation, the veteran reportedly works as a
security officer, which involves sitting approximately 90
percent of the time. He indicated that, due to his back pain
he is forced to get up 2 to 3 times per hour to walk, and he
has missed work due to his back disability for which he was
placed on probation. The examiner noted the veteran used a
cane in his right hand for ambulation, but did not have a
lumbosacral corset.
On examination, with some difficulty the veteran was able to
heel and toe walk. There was tenderness in the midline over
the lumbosacral area, and he complained of tenderness in the
sciatic notches and greater trochanters, bilaterally. The
veteran had a mild right gluteus medius gait when walking
without his cane, but walked well with the cane. The
examiner noted the veteran's gait appeared normal.
"Painless range of motion of the [thoracolumbar] spine
revealed flexion from 0 to 40 degrees." Extension, and
bilateral lateral rotation and bending were to 30 degrees.
X-rays of the lumbosacral spine revealed no significant bony
abnormalities. The examiner's diagnosis was lumbosacral
sprain, and, following repetitive use, no additional loss of
clinical function due to weakness, pain, or fatigue was
found.
Considering the evidence in light of the applicable criteria,
the Board finds that, for the period since October 12, 2005,
the criteria for a rating in excess of 20 percent for
lumbosacral strain have not been met. In this regard, the
only range of motion testing during the period in question
did not indicate forward flexion of the thoracolumbar spine
30 degrees or less, or ankylosis of the spine. On October
2005 VA examination, painless forward flexion was to 40
degrees.
While the Board has considered the veteran's statements
regarding the impact of his pain on his activities, on the
October 2005 VA examination, following repetitive use, the
examiner noted no additional loss of clinical function due to
weakness, pain, or fatigue. Thus, there is no basis for a
higher rating under 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8
Vet. App. 204-7.
Under these circumstances, the Board finds that the record
presents no basis for assignment of a higher schedular rating
under the applicable rating criteria during the period since
October 12, 2005.
Both periods
The above determinations are based upon consideration of
pertinent provisions of VA's rating schedule. Additionally,
the Board finds that there is no showing that, during any
period under consideration, the veteran's service-connected
lumbosacral strain has reflected so exceptional or unusual a
disability picture as to warrant the assignment of any higher
rating on an extra-schedular basis. See 38 C.F.R.
§ 3.321(b). In this regard, the Board notes that the
disability has not objectively been shown to markedly
interfere with employment (i.e., beyond that contemplated in
the assigned 10 and 20 percent ratings during each respective
period). The October 2005 VA examination clearly reflected
that the veteran continues to work, although he alleges that
he must take time off occasionally for his back pain.
However, there is nothing in the record to indicate that the
veteran is no longer employed in that job, or that his back
disability has compromised his employment.
There is also no evidence that lumbosacral strain has
warranted frequent periods of hospitalization, or that the
disability has otherwise rendered impractical the application
of the regular schedular standards. In the absence of
evidence of any of the factors outlined above, the criteria
for invoking the procedures set forth in 38 C.F.R.
§ 3.321(b)(1) have not been met. See Bagwell v. Brown, 9
Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88,
96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
For all the foregoing reasons, each claim for higher rating
for the veteran's service-connected lumbosacral strain
disability must be denied. In reaching each conclusion, the
Board has considered the applicability of the benefit-of-the-
doubt doctrine. However, as the preponderance of the
evidence is against assignment of any higher rating, that
doctrine is not for application. See 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-
56 (1990).
ORDER
A rating in excess of 10 percent for lumbosacral strain, for
the period prior to October 12, 2005, is denied.
A rating in excess of 20 percent for lumbosacral strain, for
the period since October 12, 2005, is denied.
____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs